Friday 3rd June at the opening of the International Criminal Court of Ratko Mladic in Le Hague, Judge Orie outlined the charges against the Serbian General. Included in his opening remarks the Judge reminded Mr Mladic that it was his right to examine or have examined all witnesses against him in his forthcoming trial. His remark prompted me to reflect back to the recent Miscarriage of Justice seminar held in Queen’s University Belfast three weeks earlier. The seminar dealt exclusively with the case of republican Michael McKevitt who was convicted in Dublin’s non-jury Special Criminal Court in 2003. The clear suggestion emanating from those in attendance was that Mr McKevitt’s trial in 2003 and the subsequent civil case stood firmly within the category of ‘miscarriage of justice’. Those who followed the case will recall how Mr McKevitt’s conviction relied exclusively on a prosecution witness David Rupert who was paid a massive financial inducement to testify at the trial. Although the 2003 trial was not connected to the Omagh bombing the evidence from that trial was used against McKevitt in the Omagh civil case in Belfast. Mr Rupert refused to give evidence to the civil case but the court relied exclusively on his evidence from the Dublin trial, thus denying Mr McKevitt the right to examine or have examined all witness against him in the Omagh civil case.
The case of Michael McKevitt for obvious reasons appears to prick the minds of so many people within legal circles, even all these years later. I was always of the opinion that the trial in 2003 of Michael McKevitt was one of the most blatant injustices in recent years and how the evidence from that trial was used to shore up the Omagh civil case is just mind-boggling. I am not at all surprised almost 10 years later that some young law students are examining the McKevitt case again. I came away from the seminar not just convinced but firmly of the opinion that this was now a double Miscarriage of Justice.
Queen’s University seminar
Dr Vicky Conway (QUB) outlined many similar cases including that of Nicky Kelly and the Birmingham Six case of injustices and the remedy open to miscarriage of justice. Human rights group British Irish Rights Watch claimed that “Mr McKevitt had not received a fair trial” in 2003. Solicitor Peter Corrigan (Belfast) claimed that the main prosecution witness in McKevitt’s trial was paid upwards of five million dollars in his evidence and wasn’t a credible witness by any stretch of the imagination. The seminar also heard that the judges in both the 2003 trial and the 2008 Omagh civil case conceded that Rupert, the main prosecution witness, was someone with a shady past. Mr Corrigan also pointed out that “A proper legal system where verdicts are reached by evidence is needed – not a witch-hunt.” Mr Corrigan concluded that he had no doubt McKevitt’s sentence would be overturned by the European Court.
Michael McKevitt’s wife Bernadette was also in attendance and outlined the details of the case against her husband who she described as a ‘political hostage’. The evidence was outlined in graphic detail and can only be described as horrifying. She identified and outlined what she called ‘the facts’ of the stictch-up against her husband including how the Gardai contradicted themselves on a Rupert file which they had in their possession but said that there wasn’t one. It was alleged in Rupert’s statement to the Gardai that he had attended an IRA Army Council meeting and Michael was present, yet a Garda surveillance report revealed that they observed Michael on the same date and time at a completely different location. That Garda report was withheld from the defence only to be disclosed on day 22 into the trial and after Rupert had left the jurisdiction, according to Bernadette. The charge of ‘directing terrorism’ was introduced in the aftermath of the Omagh bombing in 1998 and apart from Michael McKevitt it has not been used against anyone else since.
Many legal aspects to McKevitt’s conviction do not make good law and that is the reason why it keeps being revisited by people who view it as one of the most controversial Miscarriages of Justice in recent times. Many from the legal profession will say that from the outset of the 2003 Dublin trial the issue of non-disclosure of material,l which would have assisted the defence, ultimately cast a huge shadow over the conviction. The non-disclosure of material was clearly in violation of the Strasbourg case law on the ‘equality of arms’ principle on the pre-trial and trial disclosure of evidence as set out in the European Commission’s decision in Jespers v Belgium (1981).
Conflicting Garda Evidence
During the 2003 trial, the defence was anxious to obtain all the material outlining the relationship between An Garda Siochana, and David Rupert the main prosecution witness. Unfortunately, the defence was disadvantaged after being informed by the Garda that there was not a single document in existence recording Rupert’s dealings with Chief Superintendent Jennings (Rupert’s Garda handler.
In 2008 during the cross examination of Chief Superintendent Jennings in the civil case, he told the court that a file on Rupert had been retained by the Irish police from as early as 1996. This evidence was a clear contradiction of earlier evidence given by a senior Garda Martin Callinan (now Commissioner) during a pre-trial hearing in October 2002. Mr Callinan told the court on that occasion that the Gardai retained no file or other documentation on David Rupert. Calinan’s evidence revealed a clear contradiction between the two senior Garda officers and one of the most disturbing revelations throughout the case.
Other disturbing information emerged in 2008 during an investigation by Mr McKevitt’s defence team in the Omagh civil case. Mr Peter Corrigan (defence solicitor) interviewed 4 senior police officers from the Messena area in Upstate New York. Each of the police officers highlighted a number of conflicts with Rupert’s testimony to the trial court in Dublin and each one identified him as being an untrustworthy person who had been involved in criminality all his adult life. They also confirmed that he had been a ‘snitch’ from 1974 after offering his services in exchange for non-prosecution in a number of fraud cases which Rupert had denied during evidence in 2003. It is alarming to note how the New York Police officers confirmed in their statements that they had not been asked by the FBI or the Gardai to give evidence in the Dublin trial in 2003.
However, what is even more bizarre about the New York Police officers’ statements was how such information was not uncovered by McKevitt’s legal team in the lead up to the 2003 trial. One can only suggest at this point in time that something was seriously amiss throughout every aspect of the McKevitt trial in 2003 including the contribution from his own defence team.
The unfairness in relation to disclosure issues was not exclusive to the 2003 trial. Before the trial took place in 2002 during a disclosure application at Dublin’s Special Criminal Court, Senior Council for MI5, Simon Dennison QC and the FBI representative James Krupkowski both confirmed that they had not reviewed all material pertaining to David Rupert. Here was another clear contravention of Article 6 of the Human Rights Convention obligation that all potentially relevant material be disclosed to the defendant. Once again the defendant was disadvantaged by the different jurisdictional issue in which, the main prosecution witness operated as an informer. To ensure fairness and equality of arms principles as in any criminal trial, the judge should have directed during the trial that Rupert’s evidence would not be admissible until all relevant material on his credibility was disclosed to the defence. Even though he had no inherent jurisdiction to direct the American Authorities and the British Authorities to disclose the material, the judge had the ultimate sanction of stating that he would not rely on the evidence until all such material was made available to the defence.
Other important evidence wasn’t served on the defendant until the main prosecution witness David Rupert had completed his evidence and had left the jurisdiction. The late disclosure of the material included a Garda surveillance report showing McKevitt was at his home at the time and date when Rupert said that he was in attendance at a meeting in Greenore on 17 February 2000. It also included an email dated 17 February 2000 which also contradicted Rupert’s evidence (The email was disclosed from the outset). The Garda surveillance report makes it clear that Mat Mr Mckevitt didn’t attend an Army Council meeting in Greenore. This was marked contrast to the statement that he had provided the prosecution authorities for the purposes of court. (The statement clearly said that McKevitt attended and said certain things. The Garda surveillance report was only disclosed on Day 22 in the trail). At the outset of the trial when the defence highlighted the conflicts in the email and the statement the prosecution said that the statement was correct. This assertion misled the defence and damaged the defence preparations. The email dated 17th February 2000 illustrates the dangers of relying upon untested documents, which may have the appearance of authenticity. The detail in the actual email looked convincing until it was examined in conjunction with the Garda surveillance logs on that day. It is similar to another email to David Rupert which appears to be written on 19th October 1999 but when one reads the content it is referring to an event that is in the future which is to happen on 18th September 2000.
The FBI Material
The defendant attempted to obtain material from the FBI outlining the relationship that they had with their agent David Rupert. The FBI refused to disclose material voluntarily in the case. However, the defendant attempted to obtain the material by invoking an application under the Hague Convention. The FBI responded to the application refusing to deal in any substantive way with the queries raised. The main point of objection centred upon Rupert’s rights to privacy. In the circumstances, such a stance is, incredulous, bearing in mind the nature of the allegation faced by Mr McKevitt.
It also outlined that the defendant Mr McKevitt went to exhaustive lengths to attempt to obtain material from the different organisations that would assist his defence and at every stage he was prevented from obtaining this material.
Omagh Civil Case
Despite the fact that David Rupert gave evidence at the trial in Dublin without any logistical difficulty, he didn’t give evidence at the civil trial in Belfast. The offer of giving evidence by video link from the US was also turned down by Mr Rupert the main prosecution witness, thus avoiding subjecting himself to cross-examination. Mr McKevitt’s Article 6 Rights were again undermined by the Judge’s Ruling that the seriousness of the case didn’t merit the proceedings being made equivalent to criminal proceedings. This Ruling was very important because in civil proceedings the defendant doesn’t have the right to effectively cross examine the main witness against them, whereas in criminal proceedings he or she would.
It is central tenet of any adversarial system that a defendant has the right to challenge any fact alleged against him. The right to mount such a challenge must be exercised in a way that is meaningful. At the heart of the common law system is the right to confront ones accusers and challenge them by way of cross examination as outlined by Judge Orie at the International Criminal Court in Le Hague in June 2011. This right had been set at nought in the Omagh civil case and resulted in the second miscarriage of justice against Michael McKevitt.
The only conclusion that could be drawn from Mr Rupert’s non-cooperation in the civil case was out of concern that any cross-examination in the case would not have stood the test and would have led to the overturning of Mr McKevitt’s 2003 conviction and the ultimate collapse of the Omagh civil case against him.